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UncleNasty -> RE: Damn banks are at it again. (7/12/2009 9:28:11 AM)
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quote:
ORIGINAL: blacksword404
quote:
ORIGINAL: DemonKia
FR, after read thru
But see, Bernie Madoff was supposed to pay for all those sins. His head has rolled, the cell doors are closing on him, & we're all supposed to get on with ignoring all the less-obvious fraudsters in finance . . . .. . Wall Street & all the financial players aren't the problem, they're not perpetuating problems, it's those other 'bad guys', over there . . . . . .
Okay, seriously. The credit agencies should be bankrupt & their segment of industry should be subject to some basic regulations to limit the blatant conflicts of interest that led to all this garbage debt being laundered as AAA secure assets . . . . .
It seems nothing has been learned. At least not by them. And if we allow them to do this stuff again then not by us either.
There are a number of people I know personally, myself included, that have been doing anything and everything possible, short of violence, in an effort to keep them from "getting away with it" in any fashion. I have yet to see any substantial or effective response from any governmental branch, or officials. There have been some episodic and isolated responses, but nothing that has risen to the levels of the frauds being perpetrated by the "bad guys." As best I can see from my exhaustive research into the issues no branch of government is doing its job in terms of regulation, enforcement, protection or prosecution
In Florida some Circuit Court jurisdictions have employed a tactic that is being called the "rocket docket." The court is attempting to push foreclosures through in as little time as possible, with many cases getting no more than a couple of minutes (literally) time in front of a judge. Recall that Florida has been leading the nation in foreclosures for the past 5 years (actually, 4 different areas have been vying for the "record" so it has been floating amongst Florida, California, Nevada and Ohio).
Facts and law are what courts are to look at and rule on. They have a duty to provide due process of law and equal protection under the law in impartial and unbiased proceedings. Yet the simplest of issues is ignored by the courts in their rush to judgment.
Most foreclosing parties do not have the right to file suit. They are not the party named on either instrument (promissory note and mortgage) and as such have no standing to file suit. This is covered in Article III of the US Constitution, and is also covered in most states Constitutions. The open courts doctrine, in simplest form, is that if you haven't been injured you have no right to invoke the jurisdiction of the court. If the instruments do not name the party filing suit as grantee or payee then there is no injury, and thus no standing. The courts lack subject matter jurisdiction.
Now you're thinking "Well, the note has been sold, or securitized, so the current owner and holder is different than the originator, or the original named payee and grantee."
That one is pretty easy. The Uniform Commercial Code covers the transfer of negotiable instruments in Article 3, Parts 1-3 (http://www.law.cornell.edu/ucc/3/). To put it simply only a named payee can perfect a claim to a negotiable instrument, and thus enforce or negotiate the instrument. Transfer of an instrument is by endorsement AND delivery.
We're all familiar with this process. A check is a negotiable instrument. To transfer rights of ownership and holdership of a check it must be endorsed by the payee to another party - merely signing the back of the check (endorsement), either to another another party, or in blank (making it in essence a bearer bond), and giving it to the party (delivery) transfers all right and title to the instrument.
Almost all plaintiff's in foreclosures don't produce the original note. At best they proffer as evidence a mere copy of a promissory note. Copies are only admissible as evidence if they are introduced by a foundation witness with firsthand knowledge, and further only if the documents are authenticated by a/the custodian of records, under penalties of perjury, to be true and accurate of the originals. Various states Rules of Evidence, mirroring the federal rules, cover the admissibility of business records in their respective title/section/article 9. A google search under "[state] rules of evidence" will turn up the rules in your state. Typically this will be found in "title 9, section 11."
Many plaintiff's in foreclosures don't produce even an unauthenticated copy of a promissory note issued in another party's name. The complaint merely states "Plaintiff is the owner and holder of a promissory note, a copy of which is not available at this time..." Thus no evidence whatsoever is produced.
In almost all cases courts go along with all of this.
Consider if it weren't a foreclosure, and the courts weren't involved. Consider instead an indvidual attempting to negotiate a check at a bank in any of the above circumstances. There isn't a snowballs chance in hell it would work.
Example 1.
Patron: I'd like to negotiate a check.
Teller: Allright. Lets have a look.
(Patron hands check to teller)
T: I need to see some ID.
(Patron produces ID)
T: Sir, this check isn't made out to you, and it isn't endorsed by the person in whose name it is made. I'm sorry I can't cash it for you.
Example 2.
Patron: I'd like to negotiate a check.
Teller: Allright. Lets have a look.
(Patron hands check to teller)
T: Sir, this isn't a check. It is only a Xerox copy of a check. I can't cash a copy of a check.
Example 3.
Patron: I'd like to negotiate a check.
Teller: Allright. Lets have a look.
P: Actually, their is a check made out to me, but I don't have it with me.
T: Sir, I can't give you money just because you say there is a check made out to you, by someone, for this amount, somewhere in the world.
In each of the above examples the courts are saying "OK, we don't care what the laws are, go ahead and take their stuff."
None of this is rocket science. It is easily comprehended by almost anyone. And it is black letter law.
I started this with "... people I know personally..." Many are pounding on the doors of the parties (the courts) that are entrusted to maintain the rule of law, to provide due process of law, and equal protection under the law. Their job is to rule in accordance with the facts and the law. They are not doing their job.
Their are many other areas I've not touched on here. Were I to do that this would would quickly turn into a book.
I am providing a couple of recent articles that are perhaps a bit more in line with the OP.
Now securitization of IOU's is being considered.
http://www.google.com/hostednews/ap/article/ALeqM5jHe_YR8ihWWjIRmFF1rKPYBkrTXQD99BA7K00
NYT in re the failures of loan modification programs to make even a dent in foreclosures. Note the 4 fold increase in annual foreclosures from 05 (800,000) to this years projected number (3,500,000). It isn't getting better, and continues to get worse.
http://www.nytimes.com/2009/07/11/business/11nocera.html?_r=1&emc=tnt&tntemail1=y
Uncle Nasty
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